Tuesday, August 15, 2017

+Bruno, Schmuno: Diocese of LA Sells Out its Parish for the Money

Today, those clinging to the dying remnant that was the once-renowned Protestant Episcopal Church in the United States of America ("PECUSA" -- or, after they dropped the first adjective, "ECUSA") finally learned that there is no soul left in that scabrous body. Long ago, it sold itself out to Mammon. Now, those who blinded themselves to that fact are sadly learning the reality.

I have thoroughly documented on this site all the ups and downs of the parish of St. James the Great, in Newport Beach (Orange County), nonetheless a member of the Diocese of Los Angeles. I regret  having no patience for rehearsing the dreary steps of that history again: start here, then go here, and continue backwards through the earlier posts at this page.

The interim decision of the Hearing Panel of the Disciplinary Board for Bishops set forth its recommendations for the suspension of Bishop J. Jon Bruno and for the reinstatement of the congregation of St. James into its Newport Beach property. There was one dissenting view, from Bishop Michael Smith of North Dakota, who expressed the opinion that the Hearing Panel had no business getting mixed up in the local property ownership dispute.

As I detailed in my posts linked above, it emerged after the conclusion of the hearing that Bishop Bruno had secretly entered into another confidential agreement to sell the St. James property -- to a different Newport Beach developer.  The Hearing Panel entered a special order to keep him from going forward with the sale, which was to have closed escrow on July 3.

Bishop Bruno's appeal of that restraining order was rejected, but ECUSA's Presiding Bishop, in an express desire to "protect the integrity" of the disciplinary proceedings, issued a highly unusual pastoral restriction on the authority of Bishop Bruno to make any disposition of the church property (even though he owned it through his corporation sole) pending the hearing's outcome. Since that report, the Presiding Bishop of ECUSA expanded his restrictions on Bishop Bruno, and effectively removed him from any further episcopal oversight of either the St. James parishioners or their vicar, the Rev. Canon Cindy Voorhees.

The Presiding Bishop also ordered that henceforth, the Bishop Co-Adjutor for Los Angeles (Bishop Bruno's elected replacement upon the latter's resignation [retirement]), the Rt. Rev. John Taylor, would have pastoral care of the parish and its vicar. He further specified that Bishop Bruno could in no way authorize any sale of the St. James property to go forward pending the conclusion of the disciplinary proceedings.

The Hearing Panel, after considering submissions from both sides, then entered its final decision and recommendations (again, with the dissent of Bishop Smith of North Dakota). It made its chief recommendation in the following language (emphasis in the original):
After hearing this entire unfortunate case and after prayerful deliberation the Hearing Panel reaches a definite and clear conclusion: The Hearing Panel strongly recommends to the Diocese of Los Angeles that as a matter of justice it immediately suspend its efforts to sell the St. James property, that it restore the congregation and vicar to the church building and that it reassign St. James the Great appropriate mission status.
Notice the word "recommends" (forget "strongly"; that is just window-dressing).

It is key to understanding both the polity (structure) of ECUSA, and the now unfortunate outcome of this case, that one take into account the true relationship among the individual dioceses of ECUSA and the individual pieces of the national church organization. (The latter are the Presiding Bishop and his staff at 815 Second Avenue, in New York, the officers and committees of the General Convention, which meets only once every three years, and the episcopal disciplinary bodies which convene under the authority of the national canons.)

For it requires such an understanding to put into context the announcement today by the Bishop Suffragan of Los Angeles that in agreement with the Diocesan Standing Committee, and despite the strong recommendation of the Hearing Panel just quoted, the Diocese of Los Angeles intends to go forward with the sale of the Newport Beach parish's former property that Bishop Bruno surreptitiously contracted with a developer while he was under disciplinary jurisdiction.

Bishop Taylor's patently lame excuse for this outlandish development is as follows:
In prayerful discernment, we opened our hearts to a variety of possibilities for reconciliation in Christ and healing for St. James and our whole community. But Bishop Bruno has entered into a binding contract to sell the property. The buyer has the legal right to expect the seller to honor the contract. Much as we might wish it were otherwise, we do not believe that it would be in the interests of the diocese or consistent with our fiduciary responsibilities to endorse any steps leading to breaching or threatening to breach an enforceable contract that could lead to further expense and litigation.
Translation: even if Bishop Bruno breached his fiduciary duties to the Diocese and the congregation of St. James the Great by entering into a contract to sell the latter's property without their consent, the Diocese will honor his underhanded dealings by going forward with the contract. Otherwise the Diocese (!) -- and not Bishop Bruno or his corporation sole -- could suffer "further expense and litigation."

Excuse me, but this rationale does not even pass first blush. The contract in question was between the developer and Bishop Bruno's corporation sole. It was not (so far as I am able to learn) a contract with (or guaranteed by) the Diocese per se. Bishop Taylor, the Standing Committee, and the Diocese itself have no liability to the developer if Bishop Bruno's corporation sole is unable to perform on its contract -- they were not parties to it.

So if Bishop Bruno is unable (due to the restrictions placed upon him by the Presiding Bishop) to sign the deed conveying title out of his corporation sole, could the developer sue the corporation sole for specific performance? Undoubtedly he might, but could a secular court order the incumbent of a religious corporation to sign a deed that he no longer has the authority to sign?

I doubt it seriously. If Bishop Bruno no longer has the authority to sign the deed, the situation is just as though he had died before the close of escrow. The next incumbent of the corporation sole (i.e., the Rt. Rev. John Taylor) would be subject to a court order to sign -- but only once he takes office.  Bishop Taylor has no current authority on behalf of the corporation sole, and will have none until Bishop Bruno is removed as its incumbent and he is installed as +Bruno's replacement. Under the Hearing Panel's suspension order, that could take three years or more. Is the developer prepared to wait that long?

Perhaps the developer might want to sue the corporation sole for damages for breach of contract, rather than seek specific performance. According to this article, however, his damages are limited to his "out-of-pocket costs" -- i.e., for his preliminary title report, and for any physical investigations he made into the condition of the property, etc.  Such expenses could at most amount to a few tens of thousands of dollars (if that much). So of what, exactly, is the Episcopal Diocese of Los Angeles afraid?

All these speculations serve only to point out that they are all the consequences of Bishop Bruno's secret actions  -- without the knowledge, consent or (I trust) participation of the members of the Standing Committee, or other diocesan officers.

Although the Standing Committee was clearly derelict in its responsibilities when it approved the original (2015) transfer of the property to the corporation sole, I have seen no evidence that its members were complicit in the most recent, and highly secret, sale. That said, however, how could it reasonably be argued that its consent to one (unknown) deal in 2015 provided a blanket of authority for Bishop Bruno to enter into a second deal (presumably unknown to the Standing Committee) for the property in 2017? Surely the consent required by the canons must be informed consent, i.e., consent given after full disclosure of all the factual and legal details.

And if that is the case, just why should the Diocese and the Standing Committee now find it necessary to throw the congregation of St. James under the bus?? Surely the answer couldn't be that "it needs the money from the proposed sale." Or could it?

If that is truly the case, then a pox on all of Bishop Bruno's enablers on both sides is in order. For they were the ones who sat silently by as he brought suit to oust the original parish of St. James in the first place, and as he ran up the millions and millions of dollars in legal fees and costs that they now seek to recoup from the current sale.

In other words: if it was about dollars then, and is still about dollars now, then it has always been about the dollars, and not about the people. The parishioners from time to time are just pawns who come and go as they are sacrificed on the secular chessboard for the bishops' sake, and it is high time they drew that conclusion from how all St. James's parishioners have been treated -- first by Bishop Bruno and his apologists, and now by the Suffragan Bishop, by the current Standing Committee, and by Presiding Bishop Curry (who appears to have acquiesced in the ousting of the latest congregation). Under the evidence, then, it just comes down to dollars, and not the collective faith of parishes.

One concluding observation, which goes to Bishop Taylor's own candor in these machinations. According to his public statement on this debacle (and I quote verbatim, with my bold emphasis added), "We pledge to do all we can to ensure that capital sums received by the diocese, including proceeds from the Via Lido sale, are conserved for the sake of generations to come."

Wait: I thought that the proceeds of the sale of the St. James property (NB: not acceding to Bishop Taylor's euphemism of "the Via Lido sale"), were by contract coming into the corporation sole, not the Diocese. And if that is the case, how do they get out of the corporation sole's bank account and into the Diocese's accounts without Bishop Bruno signing some sort of draft on his corporation sole's account -- which he is under strict prohibition not to do?

Finally, what does the empty promise to "conserve[ those funds] for the sake of generations to come" do for the current needs of the congregation of St. James? Are they expected to sacrifice the value of their long-standing worship property for some unspecified benefit to unspecified future Episcopalians?  (Again, listen to Bishop Taylor make hollow-sounding promises on behalf of a secular, profit-minded developer.)

Without more details, Bishop Taylor's solemn pledge to "conserve" those proceeds reeks of the duplicity that Bishop Bruno habitually used to derail opposition to his self-serving maneuvers.

Let us try to summarize and draw conclusions from the foregoing.

First, what a chimera is the much-touted authority of ECUSA over its dioceses and its bishops. Not only can ECUSA not prevent a diocese from doing what its own disciplinary panel found was against "the integrity of the reconciliation process", whatever that high-sounding language is supposed to mean, but it is absolutely incapable of making anything more than a "[strong] recommendation" to the diocesan authorities as to how they should best protect the interests of their member congregations.

When parishes concerned about the drift of the national church were debating about how to proceed, the personnel at ECUSA's 815 Second Avenue headquarters encouraged dissidents to bring disciplinary charges against "nonconformist" clergy and bishops. And it encouraged loyalist bishops to sue clergy and parishes who decided they could not stay in the national church -- it even made a practice of joining in such suits, and in seeking punitive damages against individual rectors and vestry members (with the object of forcing them to hire expensive attorneys and drive up their costs).

But now it becomes clear that the national church's claims were hollow to start with: it can do nothing on its own to command a member diocese to take any measure whatsoever; it can only "strongly recommend" that it do something.

Second, it follows from the foregoing that if you are a parishioner in an individual parish, then no matter how much you might support the national church's agenda, you are on your own when push comes to shove in your own parish, or diocese. The national church is powerless to aid or support you; what you are able to salvage will depend solely on those officials in the diocese whom you can persuade to support you. Good luck with that!

Third, the desultory example of St. James itself, over a period of twelve years, should furnish all the proof you need that neither your national church nor your diocese cares one whit for your parish's ongoing welfare. They are happy to accept the tributes you send their way, so long as you keep sending them. But the moment that their financial survival / viability is at stake, you and your parish assets become expendable, regardless of the length or loyalty of your service to them. Remember: it's all about Mammon.

Is it any wonder that ECUSA is a dying denomination? Maybe some good may come of its selfish (and self-destructive) behavior, but if so, it will not be before it shrinks a great deal more, and before its members, out of sheer necessity, learn anew how to make mission out of adversity.

Since God has a purpose for everything under the sun, let us pray that He will use the apostate denominations of our time as a means of restoring their disenchanted followers to His fold. Amen.







Thursday, August 3, 2017

Massive Conflict of Interest Taints South Carolina Ruling (UPDATED)

Yesterday, almost two years after hearing arguments, the Supreme Court of South Carolina finally issued its decision in the case of The Protestant Episcopal Diocese of South Carolina, et al. v. The Episcopal Church, et al., as I wrote in this post. Because the Court's collective opinions were some 77 pages long, I was able in the short time after their issuance to present only the broadest overview of the differences that divided the five Justices on the Court.

Today, I plan to examine in depth what I consider to be the overarching problem with the decision: the fact that it glosses over a massive conflict of interest on the part of Justice Kaye Hearn. While she was definitely biased when the case was first appealed to the Court, as I explain in more detail below, that blight on her impartiality pales into insignificance before the blatant, result-oriented bias she has exposed in her opinion concurring in a 3-2 decision that would result in the transfer of multiple millions of dollars' worth of real property from the plaintiff Diocese to the ECUSA-controlled defendant, called the Episcopal Church in South Carolina ("ECSC").

For the basic problem with Justice Hearn's role in this case is as follows. When the case was first appealed in 2015 by the Episcopal Church of the USA ("ECUSA") and the ECSC, Justice Hearn (the newest justice elected to the Court at the time) had been, since at least March 2007, a member of the Episcopal Forum of South Carolina. That was the very organization which, through 14 of its membersbrought disciplinary charges in 2012 against Bishop Mark Lawrence, while he and his Diocese were still members of ECUSA, in an effort to have him deposed by the Disciplinary Board for Bishops. The Disciplinary Board's acceptance of those charges, and its issuance of a "Certification of Abandonment" against Bishop Lawrence, precipitated the withdrawal of his Episcopal Diocese of South Carolina from ECUSA.

[UPDATE 08/05/17: As is evidenced by this newsletter issued during the first week of the trial before Judge Goodstein in July 2014, members of the Episcopal Forum had one "sole mission" to carry out (my emphasis added):
Join The Episcopal Forum of South Carolina and affirm your support for The Episcopal Church of the United States of America, its Constitution and Canons, the authority of its General Convention, and the leadership of its Presiding Bishop.

This is the sole mission of The Episcopal Forum of SC.
Thus, as a long-standing member of the Forum, Justice Hearn was, already before the case of Bishop Lawrence came to her Court, fully committed to upholding the national church's Constitution and Canons -- including, as you will see, ECUSA's infamous Dennis Canon -- against parishes that claimed they no longer were subject to those rules. She was further committed to supporting the leadership and authority of ECUSA's Presiding Bishop over Bishop Mark Lawrence.

In short: she had already prejudged the chief issues in the case. And yet, she saw no reason to recuse herself from it.]

In her concurring opinion, Justice Hearn went out of her way to castigate Bishop Lawrence and the role he played as chief pastor of his Diocese -- ecclesiastical matters which, as her colleagues pointed out, had no business being addressed in a secular judicial opinion. In doing so, she only advanced, and acted as a spokesperson in black robes for, the sectarian interests of the Episcopal Forum to which she still (presumably -- the organization no longer publishes the names of its members) belongs. At the same time, she contradicted her own precept that South Carolina courts should stay out of Episcopal Church matters and defer to its "ecclesiastical determinations."

Further, according to the minutes, Justice Hearn's husband, George, was one of the duly designated delegates to the special convention of ECSC called in January 2013 by ECUSA's Presiding Bishop to replace Bishop Lawrence. That convention elected Charles G. vonRosenberg as Provisional Bishop of ECSC, who promptly brought suit against Bishop Lawrence in federal court and countersued in the State court action -- eventually seeking the recovery of all the properties of each of the 36 separate parishes involved in that litigation. George Hearn also was a deputy to the first regular convention of ECSC held in March 2013.

One would think that Justice Hearn, given her membership in the organization that initiated the disciplinary proceedings against Bishop Lawrence and whose sole mission was to support ECUSA, and given her husband's role in enabling the litigation now before her, might have considered recusing herself from the 2015 appeal to her Court by her own diocese (ECSC) and church (ECUSA), an appeal which placed directly at issue the actions of Bishop Lawrence and his Diocese that removed them from ECUSA. But one would be wrong. She not only stayed on the case, but she displayed a disgraceful bias in her own church's favor during the oral arguments in September 2015.

Fast forward now to the current year. The appeal by Justice Hearn's church and diocese has been languishing for 15 months because the five justices have been unable to form a consensus on how to resolve it, and are still circulating draft opinions. At some point in the process (perhaps just a few months ago, or perhaps it was right after the oral argument in September 2015), it has become clear that there are two votes (Acting Justice Pleicones, and, naturally, Justice Hearn herself) to apply ECUSA's Dennis Canon full bore to the withdrawn parishes.

They would hold that under the terms of the Canon (see the link), the departure of Bishop Lawrence and his Diocese from ECUSA resulted in an automatic transfer of the title to all 36 parish properties to Justice Hearn's group, in trust for ECUSA.

On the other side, there are two votes (Justice Kittredge, and former Chief Justice Toal) in favor of  upholding the trial court's decision to let the 36 parishes keep their properties after withdrawing, because according to the Court's earlier unanimous decision in the Waccamaw case, the Dennis Canon had no force in South Carolina. (Justices Pleicones and Hearn, by the way, would also vote to overrule the Waccamaw decision on that point, as having been erroneously reasoned even though unanimously decided. Justice Hearn sent a strong signal to that effect during the 2015 oral arguments.)

In the middle is Chief Justice Beatty (who joined in the Waccamaw decision). Like Justices Toal and Kittredge, and following Waccamaw, he thinks that the Dennis Canon does not, in and of itself, function to create a legally cognizable trust on parish property within the State of South Carolina. But like Justices Hearn and Pleicones, Chief Justice Beatty also believes that individual parishes who submit (or "accede") in their own governing documents to the national church's Constitution and Canons, can be held to be subject to the trust imposed by Dennis Canon -- even if they later try to change their minds (the so-called "roach motel" argument: "You can come in, but you'll never, ever leave").

That would mean that some twenty-nine of the thirty-six parishes would have to surrender all of their properties to ECSC -- Justice Hearn's own diocese. (The other seven would include the church that Justice Hearn and her husband attended until it withdrew along with the Episcopal Diocese -- St. Paul's in Conway, South Carolina. They each, along with a parish trust for St. Andrew's in Mt. Pleasant, apparently never acceded in writing to the national canons.)

Now you are Justice Hearn, with your draft opinion showing your strong disapproval of Bishop Lawrence, and your hierarchical view of ECUSA's authority over all of its parishes. You realize that if you adhere to those views, and vote accordingly, your own diocese will be richer by millions and millions of dollars in valuable real estate -- because, along with the vote of Justice Pleicones and the split vote of the Chief Justice, you will supply the critical third vote needed to reverse.

What do you do?

Do you regard it as improper to provide the deciding vote on a divided court when your own church and diocese will gain a substantial monetary benefit from your decision?

Or do you realize that your earlier failure to recuse yourself from this dispute has now brought you to a genuine quandary?

If you rule for your own diocese, it would be just as though a judge who belonged to a particular country club had decided to rule in its favor against, say, another country club that claimed title to the same golf course. But if you rule against your own diocese, your fellow church members will accuse you of betrayal, and of having cost them all of the property they otherwise would have acquired. You cannot win, whichever way you go (which is why you should have recused yourself at the outset).

Even worse: if you now belatedly recuse yourself before the decision is announced, the result will be a tie vote, 2-2. That will mean that the trial court's decision awarding all of the properties to the individual parishes will stand as the final decision in the case, since there are not three votes to reverse it. And so once again you will be accused of betraying your fellow parishioners.

We all know now what Justice Hearn decided to do about this quandary: she brazened it out. Not only that, but she wrote a concurring opinion in which she declared that if she could have garnered Chief Justice Beatty's complete backing, she would have declared that the properties of the parishes who never signed on to the Dennis Canon (including her own former parish) would be forfeit to ECUSA and ECSC, as well. As Justice Kittredge wrote in his dissent:
[I]t is undisputed that eight of the local parishes were never subject to the 1979 Dennis Canon. Yet two members of this Court would go further and transfer to the national church ownership of the property of the eight churches that never agreed to the Dennis Canon. That is stunning. The effort by two members of this Court to strip the property from these eight churches confirms Justice Toal's observation concerning their motivation to "reach[] a desired result in this case."
Indeed, it is stunning. It shows not only Justice Hearn's egregious degree of bias in this case, but it also provides convincing evidence of her willful blindness to the massive conflict of interest to which she -- and she alone -- is subject, due to her membership in ECUSA and ECSC.

If anyone needs further evidence of Justice Hearn's blatant bias, I invite them to perform a straightforward exercise: compare the excerpts of her comments and questions at oral argument (found here) with the points she makes in her written opinion (starting at page 21 of the .pdf document at this link). It is clear that she had already made up her mind about the case before it was argued, and that she felt no need to change or revise her views since.

What personal advantage or gain did Justice Hearn achieve with her tie-breaking vote? She herself is silent on that point, but her vote itself in the face of such a massive conflict speaks volumes. It is undeniable that her vote, if the Court's decision stands, will make her own diocese much wealthier than they are now; perhaps she and her husband will save some money on their pledges, or perhaps the diocese will have more money so that delegates like Mr. Hearn would not have to pay their own way to conventions. There is only speculation as to how she (and he) may have gained -- the point is that something had to make it worth her while to make such a brazen decision in the face of such a conflict of interest.

To reiterate: it is only due to Justice Hearn's biased but deciding vote that her own diocese and church will now be millions and millions of dollars wealthier. (They do not have the congregations to fill or even support most of the properties, so they will probably sell them for the money they can get.)

It is irrelevant that hers was only one of three necessary votes. It might not have been as crucial if she were just one vote out of five to reverse, since the result would not have changed if her vote was not counted. But it remains an unalterable fact: The only way that ECUSA and ECSC could profit so richly from the Court's decision is thanks to the concurring vote of Justice Kaye Hearn.

Let us now review briefly the provisions of the South Carolina Appellate Rules of Court (Part V of which includes the Canons of Judicial Conduct) that would be applicable to Justice Hearn in this case. Canon 2 ("A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities") states in general terms:
Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.
More specifically, Canon 2.B states: "A judge must avoid lending the prestige of judicial office for the advancement of the private interests of others." Could it be more clear that by resolving the tie vote, Justice Hearn was advancing the private interests of the Episcopal Church, the diocese and the parish of which she is a member -- especially since she was prepared to overrule standing case law which was adverse to ECUSA's interests?

Canon 4 of the Code of Judicial Conduct states in part:
A judge shall conduct all of the judge's extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge . . .
This would appear to prohibit voting in favor of an organization of which one is a member, like the example of the judge who votes in favor of his own country club against a rival.

The most specifically applicable Canon, however, is Canon 3, of which paragraph B.5 states:
A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability or age . . .
Section E of Canon 3 is even more specific to this case (the asterisks refer to definitions here):
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
. . .
(c) the judge knows* that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household,* has an economic interest* in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis* interest that could be substantially affected by the proceeding;
Can it be concluded, on the face of things, that any economic or other interest of Justice Hearn in the case is "de minimis" (i.e., trivial)? Who can say, since she never has made a public disclosure of her relationship with her parish, her diocese or her church in advance, as is customary in such situations, and is provided for under Canon 3.F? What one can say, however, is that the lack of any such disclosure gives the appearance of impropriety.

Assuming that Justice Hearn's conduct in this case has violated the Canons of Judicial Conduct, one has to ask what are the remedies available to Mark Lawrence, the diocesan corporation, and the individual parishes. The respective lawyers for those parties are going to have to decide what remedies they can and will pursue, but they include at a minimum the following:

(1) Petitioning the South Carolina Supreme Court for a rehearing, on the ground (among others) that until the Court published its opinions, no party could know the degree to which Justice Hearn's conflicts of interest would influence the outcome; and

(2) Bringing a complaint of judicial misconduct against her, again on grounds that could be known only after the Court rendered its decision. (Indeed, under Canon 3.D.1, "A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action.")

The consequences of either route are difficult to predict. Presumably Justice Hearn would not have the gall to vote on a petition based on her own evidenced bias and partiality, so the vote might end up 2-2 again, which would result in a denial of the petition. In that event, the only remedy would be to ask the United States Supreme Court to review the case.

Hopefully, however, Chief Justice Beatty would provide the decisive vote to grant a rehearing, and he and the remaining Justices would then engage in a thoroughly impartial and honest reassessment of the taint on the proceedings caused by the participation of Justice Hearn, and revise the outcome so as to eliminate all question of any such taint.

I doubt whether a disciplinary proceeding would have any power to change the Court's vote by retroactively disqualifying Justice Hearn from participation in the case. The best remedy for this miscarriage of justice will be for the remaining Justices on the Court to man up, own to their having been blind to the conflicts that influenced Justice Hearn, and make a new decision that is free from all appearance of impropriety.

South Carolinians on both sides of this case will be watching as matters unfold over the coming weeks, and your Curmudgeon will report here on all further developments.



Wednesday, August 2, 2017

BREAKING - So. Carolina Decision Is Out

Published just a few minutes ago. Here is the court's own summary:

In a divided decision, the trial court's order is reversed as to twenty-nine parishes and affirmed as to the remaining parishes. The trial court's intellectual property ruling is affirmed by a vote of 2-2, with one justice declining to reach the issue.

Here are the seven parishes (and one land trust) which, by a 3-2 vote, were not subject to the Dennis Canon: Christ the King, Waccamaw; St. Matthews Church, Darlington; St. Andrews Church-Mt. Pleasant Land Trust; St. Paul's Episcopal Church of Conway; The Episcopal Church of the Parish of Prince George Winyah, Georgetown; the Parish of St. Andrew, Mt. Pleasant; St. John's Episcopal Church of Florence; and St. Matthias Episcopal Church, Summerton.

Note that the opinions are confusing as to how many "congregations" -- seven or eight -- managed to escape the Dennis Canon, by never acceding in their articles or bylaws to the Constitution and Canons of ECUSA. The reason is that one of the eight is not a congregation, but apparently a trust that holds title to church property.

The opinions show a bitterly divided Court that could not agree even upon the basic framework by which to decide the case (what the Court calls "the standard of review"). I put a lot of the blame for this divisiveness upon Justice Hearn, about whose blatant bias I wrote at the time of the oral argument. Her opinion concurring with Justice Pleicones might as well have been written by David Booth Beers.

In a nutshell, here is the determinative dispute among the members of the Court. First, let Acting Justice Pleicones explain how he (and Justice Hearn, and Chief Justice Beatty) view the case (footnote omitted; emphasis added):
Since the main purposes of this suit were requests for declaratory judgments and injunctive relief, I find that it sounds in equity.  Doe v. S.C. Med. Mal. Liab. Joint Underwriting Ass'n, 347 S.C. 642, 557 S.E.2d 670 (2001). The Court is therefore free to take its own view of the facts. 

Now listen to dissenting (and former Chief) Justice Toal as she counters that argument (I omit her footnotes):


First, I strongly disagree with the lead opinion's statement of the standard of review. The lead opinion contends that because the plaintiffs are seeking injunctive relief, this is an equitable matter. As a result, the lead opinion finds the Court is free to take its own view of the facts.

However, by the terms of their complaint, the plaintiffs seek a declaratory judgment as to the rightful ownership, under South Carolina law, of the real, personal, and intellectual property of the disassociated diocese, the plaintiff parishes, and the trustee corporation. The plaintiffs' request for injunctive relief is clearly confined to the defendants' use of the plaintiffs' names, seals, and emblems—which, as I explain further, infra, is ultimately a question of federal law. 
"A suit for declaratory judgment is neither legal nor equitable; rather, it is determined by the nature of the underlying issue." Sloan v. Greenville Hosp. Sys., 388 S.C. 152, 157, 694 S.E.2d 532, 534 (2010). Rather than looking to the relief sought, appellate courts must look to the "main purpose" of the underlying issue to determine whether the action is at law or in equity. Verenes v. Alvanos, 387 S.C. 11, 16, 690 S.E.2d 771, 773 (2010); Sloan v. Greenville Cnty., 356 S.C. 531, 544, 590 S.E.2d 338, 345 (Ct. App. 2003).

Here, the central issue of this dispute (as succinctly put by the lead opinion) is the determination of title to real property. Therefore, the action is one at law. 
If the action is at law, then the trial court's findings of fact must be upheld unless they lack substantial evidence to support them. But if the case is one in equity, then as Acting Justice Pleicones says, the Court is free to start afresh as though trial had never happened, and take its own view of the facts.

Note that Justice Hearn supplied the third vote for the latter view, which thus became the majority view. But she was so biased from the outset that she was incapable of any kind of neutral analysis of this determinative issue. She simply adopts the view that will allow her to make the majority in the case. Had she recused herself (as she should have), the decision below may well have been affirmed as to the 29 unlucky parishes.


That's all I can write for now -- I will have much more on this rather surprising result as soon as I finish my analysis. Those wanting a little more detail, as well as an overview, could do worse than watch the interview just given to Anglican Unscripted, which was put up live on Facebook.

Thursday, June 29, 2017

Now 815 Steps In: +Bruno Has Gone Too Far

The Most Rev. Michael Bruce Curry, Presiding Bishop of ECUSA, has now interposed his pastoral authority in the Title IV disciplinary proceedings against Bishop J. Jon Bruno, diocesan of Los Angeles, about which I wrote most recently here.

He has issued, effective immediately today, the following "Partial Restriction" on the ministry of Bishop Bruno:
Partial Restriction on the Ministry of a Bishop

In recent days, I have learned of actions that, in my view, may threaten the good order and welfare of the Church. I have learned that, earlier this year, the Rt. Rev. Jon Bruno, Bishop of the Diocese of Los Angeles, entered into a contract for sale of property (the “St. James property”) that is central to a disciplinary matter now pending under Title IV of the Canons of The Episcopal Church, in which Bishop Bruno is the Respondent. According to Bishop Bruno’s submissions in that disciplinary matter, the contract for sale of the St. James property sets the closing date as July 3, 2017.

Bishop Bruno’s actions and intentions regarding an earlier attempted sale of the St. James property are currently under review in the pending disciplinary matter. I am deeply concerned that his act of entering into a new contract for sale of the same property, while his approach to the earlier sale is still under review, has the potential to undermine the integrity of the Church’s disciplinary process. The secrecy with which the recent sales contract was undertaken adds to the potential for undermining the integrity of the Church’s disciplinary process.

Accordingly, in order to protect the integrity of the Church’s disciplinary process and, thereby, the good order and welfare of the Church, and pursuant to Canons IV.7(3), (4), and IV.17(2), I hereby place the following partial restriction on the exercise of his ministry until the pending Title IV matter has been finally resolved:
During the period of the restriction, the Bishop, acting individually, or as Bishop Diocesan, or as Corporate Sole, or in any other capacity, is forbidden from closing on the sale of the St. James property, or otherwise selling or conveying the property or contracting to sell the property, or, in any way assisting in the sale or conveyance of the property.
This restriction is effective immediately. Nothing in this restriction is intended to express any opinion about the merits of the pending Title IV proceeding.

This document shall be served upon Bishop Bruno today and shall inform him of his right to have any objections to this restriction heard pursuant to Canon IV.7.

(The Most Rev.) Michael Bruce Curry

XXVII Presiding Bishop of the Episcopal Church
It would appear that this restriction moots +Bruno's rather cheeky appeal of the Hearing Panel's sanctions order of June 17 (see the update to this earlier post), because now it does not matter whether his appeal is upheld or denied by the full Disciplinary Board: +Bruno cannot close escrow on the St. James the Great property in Newport Beach without subjecting himself to new disciplinary proceedings and sanctions instituted by the Presiding Bishop.

At the same time, knowing +Bruno's stubbornness and refusals to yield to authority (he was a former policeman), I would not be surprised if he goes ahead and closes escrow anyway (assuming the buyer does not back out in light of these developments). His corporation sole is in law the record owner of the property (thanks to the fecklessness of the diocesan Board and Standing Committee). Therefore in the eyes of California civil law, +Bruno is on paper, at least, capable of conveying good title to the property, whether his doing so violates an ecclesiastical order or not.

Caveat: While he may be able to sign a deed conveying title, the holding of the California Court of Appeals in the first Bishop Schofield case may give ECUSA the right to sue for the return of the property, since by now the proposed developer in Newport Beach is fully aware of the proceedings against +Bruno, and could not be treated as an innocent, bona fide purchaser without notice. That is why any sensible title attorney knowing that case would urge extreme caution on the buyer's part.

Bishop Bruno also has, reportedly, a further $25 million or so of property in escrow which is not affected by either the sanctions order or the Partial Restriction. (See the earlier post linked above for details.) There is no telling at this point just what he may stand to realize personally if one or more of these escrows closes, because he has refused to disclose (in violation of his duties as a fiduciary to his Diocese and its governing bodies) any particulars of any pending deal.

Which is why ECUSA's attorney leading the prosecution of disciplinary charges against +Bruno, Jerry Coughlan, has called for a "forensic audit" of +Bruno's corporation sole in his 16-page response to +Bruno's appeal of the sanctions order (link downloads a .pdf). The response makes for very colorful and interesting reading. It outlines the same primary case for protecting ECUSA's disciplinary jurisdiction over +Bruno that the Partial Restriction does, and in the process characterizes +Bruno as a "rogue bishop", the role of which he certainly has acted until now.

[UPDATE 06/29/2017: Church Attorney Coughlan has now filed an amendment to his earlier response in which he calls for the Panel to apply its extreme sanction, and depose +Bruno from his see outright. If the Panel were to do so, it should probably exercise its prerogative to make the deposition effective retroactively, as of the date it noticed the public hearing on the complaint against +Bruno, since it was after that date that +Bruno entered into his secretive contract for sale. Removing +Bruno from his office as of that date would cancel and render invalid any contract he entered into subsequently.]

So, as foreseen long ago on this blog, we may be coming to the ultimate showdown -- a contest of authority between an ostensibly autonomous diocesan bishop and the national body's presiding bishop, who in 2009 was given pastoral authority for the first time ever over other ECUSA bishops by the changes adopted in that year to Title IV at General Convention. (Those changes to the disciplinary rules were one of the reasons Bishop Mark Lawrence and his Diocese of South Carolina cited for their decision to withdraw from ECUSA.)

It is too early to say how this matter will play itself out, because there are now very strong forces gathering on both sides. I will update further as I believe appropriate.

Friday, June 23, 2017

+Bruno Caught Between a Rock and a Hard Place [UPDATED]

The Rt. Rev. J. Jon Bruno, Bishop of the Episcopal Diocese of Los Angeles, has landed himself in a difficult spot. As detailed in this earlier post, he entered into a contract in 2015 to sell the property of St. James the Great in Newport Beach to a developer for a price of $15 million, without bothering to inform its parishioners beforehand. When the congregation and its vicar protested, he changed the locks and kicked them out.

This being Bishop Bruno, litigation soon ensued -- between the parish and its Bishop, and between the original donor of the church's property (who sought to enforce a restriction on the use of the property for anything besides church purposes). The parishioners also brought charges of fraud, misrepresentation and "conduct unbecoming a member of the clergy" against +Bruno before the national body's Disciplinary Board for Bishops, as detailed in this earlier post.

The litigation grew nastier, as narrated in this post. Matters even began to sour between Bishop Bruno and his own Diocese's convention. Eventually, the original purchaser pulled out of the contract (because of the litigation, no doubt), +Bruno rejected all attempts at mediation / conciliation with the parishioners, and the Disciplinary Board's review panel ordered the matter (over +Bruno's hypocritical objections) to a full-blown, public hearing, which took place over three days at the end of March of this year. (You can read the day-by-day accounts of the proceedings at this site, if you choose. With my departure from ECUSA, I have pretty much stopped chronicling all the desultory conduct that goes on in the name of that body.)

In the civil courts, meanwhile, +Bruno achieved mixed results. The parishioners' lawsuit to stop him from selling the property was dismissed, but his suit against the original donor has not fared well. On February 24, the Court of Appeal reversed a decision by the trial court which had denied the donor's motion to strike +Bruno's "slander of title" claim against it. The decision ordered the trial court to strike the claim from the lawsuit and award the donor its attorneys' fees and costs incurred as a result of its filing. The fees and costs will have to be paid out of the Bishop's own corporation sole, since it was the plaintiff against the donor. In another ruling, the trial court found the original donor had failed to record a renewal of its deed restriction as required by law to keep it enforceable. That freed +Bruno to sell the property, but by then (as we now learn -- see below) the original buyer had backed out.

After the disciplinary hearing concluded on March 30, the hearing panel took the matter under submission for briefing before issuing its decision. The Bishop's attorneys asked the panel to dismiss all charges against him, while the attorney prosecuting the charges asked the panel to find him guilty and suspend him from active ministry for up to a year while fashioning a remedy that would foster reconciliation -- for which +Bruno to date has shown no interest whatsoever.

On June 14, before the panel had issued any decision, one of the complainants submitted colorable evidence that +Bruno had entered into a new contract to sell St. James while the disciplinary proceedings were going on. The panel asked +Bruno's attorneys to disclose to it whether he was under contract with a buyer or not, and when they gave evasive replies, the panel issued a sanctions order on June 17 directing +Bruno not to sell or contract to sell the property until "further order of the Hearing Panel."

Now comes word from Anglican news sources that on June 22, +Bruno's attorney sent an email to the panel in which she disclosed that Bishop Bruno had signed a contract to sell the property to another developer -- just three weeks after the disciplinary hearing (the purchaser signed the contract a month later). She explained that neither +Bruno nor his attorneys could respond substantively to the panel's inquiry earlier because he had been bound by a "confidentiality clause" in the purchase contract, which the parties had just agreed to modify so that he could disclose the fact of the sale. (You may read the details here and here.)

Other sources are now reporting that not only is +Bruno selling the St. James church property, but also its rectory and a huge commercial property which his corporation sole owns in Anaheim. The total sales which he reportedly has currently in escrow come to approximately Forty Million Dollars ($40,000,000).

In his desire to recoup the money he has squandered on over twelve years of litigation -- against parishes, their clergy, and (as shown above) generous donors to his Diocese -- Bishop Bruno has now landed himself between a rock and a hard place. He is under a direct disciplinary command not to complete the sale of St. James. But his contract with the purchaser provides that he will be in default -- and liable for damages and costs -- if he does not sign the deed in escrow.

Can the Hearing Panel actually block the sale? No, it cannot, since it has ecclesiastical jurisdiction only, and that is over Bishop Bruno, not the purchaser. But it can certainly discipline him for flouting its order. Such discipline could include suspension from his ministry (he will reach mandatory retirement age in late 2018), or even deposition (a drastic step he has not hesitated to take in the past against dissident clergy).

Will the Dennis Canon's trust provisions affect the marketable title to St. James property? Again, no: the Canon applies only to property in the name of a parish, and not to property held by a corporation sole or by a Diocese. (That was the ruling of the Fifth District Court of Appeal in the San Joaquin case last year.)

However, it appears from the latest stories linked above that the new purchaser runs the risk of displeasing the City Council of Newport Beach, if it tears down the church to put up some industrial or commercial complex -- for which it will need a zoning change. So the developer may find it convenient to let +Bruno out of his contract, after all.

There is no doubt that +Bruno's underhanded conduct has thrown a monkey wrench into the deliberations of the Hearing Panel. By selling the property while the disciplinary panel was considering his case, +Bruno in effect attempted to bypass its authority to maintain the status quo until it reached its final decision. No court likes to be told that a defendant has acted on his own, and surreptitiously to boot, to alter the status quo while the court has the matter still under submission.

Do not expect, therefore, that Bishop Bruno might wiggle out from this dilemma unscathed. It may cost his corporation sole still more money, and it may cost him his bishopric. I will update this post when the Panel renders its decision.

[UPDATE 06/24/2017: Bishop Bruno has filed with the Disciplinary Board for Bishops an appeal of the Hearing Panel's sanctions order. The attachments to the appeal dispel some of the mysteries surrounding his dealings with the Newport Beach property. We learn:

1. The original purchaser pulled out of the sales contract in early November, 2016.

2. At that time, Bishop Bruno was contacted by other "potential purchasers." Though there was no express canonical jurisdiction of the Diocesan Standing Committee over the Bishop's corporation sole, Bishop Bruno sought and received on November 16 the consent of the Standing Committee to a future (unspecified) sale of the property, in order to obviate one of the disciplinary charges against him (that he had entered into a contract to sell the property without obtaining the consent of the Standing Committee as required by the national canons in the case of sales of property by a Diocese).

3. The discussions with purchasers crystallized into the present buyer, which signed a "Due Diligence and Confidentiality Agreement" with the Bishop on April 19, 2017, and then entered into a formal purchase and sale agreement on May 25, with escrow to close on July 3.

4. The "colorable evidence of a pending sale" furnished to the Hearing Panel by one of the complainants consisted of a screen capture of an online property reporting service that indicated a title insurance policy had been ordered from Fidelity Title for the property on June 6, 2017 -- a sure sign that an escrow had been opened. (I assume there are similar title policies ordered for the other sales which the "Save St. James" group has reported as pending, making up the $40 million total mentioned in the post.)

5. Bishop Bruno turned down a request earlier this year from a long-time parishioner at St. James to allow her mother's ashes to be interred there in accordance with her dying wishes. The parishioner appealed to Presiding Bishop Michael Curry, but was told it was a decision which Bishop Bruno alone could make, as the Presiding Bishop had no authority over him.

6. Bishop Bruno is utterly non-repentant about keeping his dealings with the property out of the purview of the disciplinary proceedings. Once the initial sale complained of fell through, he believed there was no restraint of any kind on his ability to enter into a new sales contract for it.

7. He has asked the full Disciplinary Board to set aside the sanctions order of June 17, so that he will not go into default under his current sales contract.

Some further observations on these disclosures:

A. The "consent" by the Standing Committee (both the one in 2015 and the one in November 2016) was a meaningless gesture. In neither instance was the Standing Committee given any particulars about the sale, so its "consent" was uninformed, and for outward form's sake only.

B. We still do not know the amount +Bruno has contracted to accept for the church property, or for any of the other properties he is selling: $40 million is just an educated guess, based upon tax roll values. Nothing could demonstrate more clearly +Bruno's determination to keep all particulars of his dealings as a corporation sole from both his Standing Committee and his Diocese as a whole.

C. The Standing Committee is itself complicit in these matters, and acts as a willing rubber stamp for anything +Bruno decides to do. It has requested that he amend the articles of his corporation sole to provide for oversight and consent of its property dealings, but that is only a request -- as was the request the Convention made to +Bruno to disclose the finances of his corporation sole. He has thus far ignored both of them.

D. By virtue of his office, Bishop Bruno stands in a fiduciary relationship to his Diocese and to its governing bodies. A fiduciary under law has a duty to act in utmost good faith toward those who have put their trust in him. +Bruno's secretive conduct is the polar opposite of how a fiduciary is supposed to act toward those in his charge. For him, it's all about the money: business comes first, and to hell with fiduciary duties that get in the way.

E. Thus far, the complainants are the sole members of the Diocese who are trying to compel Bishop Bruno to observe fiduciary standards of conduct, and they are a decided minority. The Hearing Panel is their last resort. The Diocese of Los Angeles is receiving exactly the kind of fiduciary care that it asks for -- especially after its Board voted in May 2014 to transfer the Newport Beach property to the corporation sole, where it could be sold without +Bruno having to account to anyone.

F. Bishop Bruno's claim that the Panel "lacks jurisdiction" to direct him not to sell the property, while accurate in a church constitutional sense, ignores his fiduciary duties to the church of which he is an episkopos -- the Greek word for "overseer" or "guardian", used since the earliest days to describe the role and functions of a bishop. The Panel most certainly can sanction him for breach of his fiduciary duties toward his Diocese and its governing bodies, because such breach is the essence of "conduct unbecoming a member of the clergy." If you can't put your trust in a man ordained to serve God, whom can you trust?

G. The whole charade of this matter puts ECUSA's Title IV procedures to the ultimate test. It brings into sharp relief the actual autonomy of dioceses and their bishops in relation to the national body itself, which is surprisingly weak in light of how recent Presiding Bishops and their Chancellors have sought to portray its supreme authority in civil litigation over church property. Oh, yes -- the Presiding Bishop and hired attorneys will swoop down upon any hapless rector and parish (or bishop and diocese) who dare to try to leave ECUSA, and drag them into never-ending and ruinously costly litigation, regardless of the harm done to its reputation. But let one of their own have his sovereign authority to act in his own diocese be challenged, and just watch how effete ECUSA will be in response. It has taken over a year to bring Bishop Bruno to this point, and he still defies the authority of the disciplinary bodies to hold him accountable for his conduct unbecoming. (It is ironic that the ENS is currently carrying a lead story on how bishops learn to be bishops.)

The proof will be forthcoming shortly. First the Board will act on the appeal (it has been asked to do so by next week, when Bishop Bruno is obligated to sign escrow papers to close the sale), and then the Hearing Panel will have to agree upon a final decision. Well, not really "final", because then there will be a motion for reconsideration, followed perhaps by a further appeal. You get the picture.

Friday, June 2, 2017

Trumphooey

In the face of yet another onslaught from the never-Trump, ever-snorting boars (actually, bores) in the media, echoed by world so-called leaders from Europe and elsewhere, and by the brainwashed Democrats who can still commandeer a platform for a statement, it is time to pour another dose of cold reality onto the overheated political front.

Briefly: behind the Gadarene rush to condemn President Trump's announcement that he will no longer abide by the provisions of the Paris Agreement signed by President Obama is nothing more than political posturing. The campaign is designed only to spread rampant disinformation in an effort to undermine Trump's public support.

At the same time, the remarkable breadth and effrontery of this campaign is highly revealing of the motives of those behind it. There is no science (understood properly, as a prediction of what will happen when a process is repeated) to back their claims. Instead, there is a consensus of the like-minded and like-motivated, around the moniker of "climate change" (after all, who in his right mind could disagree that the climate changes over time?), that is propped up by highly flexible (and debatable) computer models.

And now that President Trump has had the gall to question the validity of their unsupported (and unsupportable) consensus, the elites and their media are in an uproar: an uproar based on fear of exposure, and not on facts (because there aren't any facts -- only elaborately constructed, and continually revised, computer models). I shall not boost their Web traffic by linking in this post to all the stories they have generated. You may, as Claude Rains would say, round up the usual suspects by going to Huffington Post, MSNBC, CNN or the New York Times, and take it from there.

In short, Obama signed the Paris Agreement as a hollow gesture to his Potemkin legacy, and now Trump has decided he won't play along with the charade. 

You will never read the whole truth in the mainstream media. So those of you who find your way to this obscure outpost on the worldwide Web may thank the luck (or chance) that brought you, because here you will find nothing but the unvarnished truth, as always -- no matter how unpalatable it may be. Qui potest capere capiat.

Let me begin with some unvarnished facts.

First, the so-called "Paris Agreement (or Accord)" of 2015 is called that, because it is not a full-fledged international treaty. It is more akin to a "gentlemen's agreement" between those who signed it as to the levels of greenhouse gases they will individually (as leaders) strive to meet on behalf of their respective countries. (I say "strive", because the Agreement contains no consequences for signatories who fail to reach their own set goals -- see below.)

Second, because it is not a treaty, it is not legally binding on any country whose leader signed it. Instead, it contemplates only a series of implementation measures to be adopted by the signers at future sessions, subject to formal ratification and adoption by the respective governmental bodies of their individual countries.

Third, in the United States, our Constitution gives legal effect only to a treaty that has been signed by the President and ratified by a two-thirds majority of the Senate. (See Article II, Section 2 for the language.) All else is ephemeral: what one President signs, a later President may revoke.

President Obama signed the accord, but he never submitted it to the Senate for ratification. So it has no legal force on the United States, and never has had. It was only his personal commitment to the other signers to lower CO2 gas emissions, and that commitment ended when he left office. Trump was in no way legally bound to continue to honor it -- and now he has announced he will not.

Thus the vocal opposition to Trump's announcement is not based in law, or on any other justifiable ground. The measure of it is simply the degree to which the globalists are outraged that any public figure should attempt at this date to thwart their agenda. (After all, they managed to persuade the heads of 197 countries to climb on board initially, and now those heads have secured official ratification in 147 instances.)

In other words, their bobbing balloons having been punctured, the "climate change" enthusiasts are now emitting a gaseous pollution of their own into the atmosphere. The collective phenomenon is so unique to our experience that I have had to invent a new word for it: "Trumphooey".



Wednesday, May 24, 2017

Inclusivity Revisited

In lieu of an update while I still explore my alternatives, I am reposting this 2014 article, because I deem it most relevant to the decisions I face just now in evaluating what it truly means to join an "inclusive" church. Obviously, ECUSA has not achieved all that it expected from its plan to "broaden" its outreach while deposing those who dared to oppose its progressive agenda.

There is no future for those who would strive to remain orthodox within the oppressive atmosphere of ECUSA. This post from 2014 says it all:


Consider the following Canon of the Episcopal Church (USA), Canon I.17.5:
No one shall be denied rights, status or access to an equal place in the life, worship, and governance of this Church because of race, color, ethnic origin, national origin, marital status, sex, sexual orientation, gender identity and expression, disabilities or age, except as otherwise specified by Canons.
(There is a similar Canon applying to the discernment process for would-be clergy.) The words "sexual orientation" and "gender identity and expression" are the most recent additions to the list of grounds upon which Episcopalians are called not to discriminate. As this Canon's predecessor stood from its adoption in 1964 (at the height of the civil rights movement) until 1982, it read:
Every communicant or baptized member of this Church shall be entitled to equal rights and status in any Parish or Mission thereof. He shall not be excluded from the worship or Sacraments of the Church, nor from parochial membership, because of race, color, or ethnic origin.
With only slight rewording in 1982, the threefold grounds of "race, color, or ethnic origin" remained untouched until General Convention 1994, when the categories were expanded by one Resolution (1994-C020) to include "national origin, marital status, sex, sexual orientation, disabilities or age." Most recently Resolution 2012-D002 added the categories "gender identity and expression."

What we see here is a progression from characteristics which define every human being, to characteristics that define only broad segments ("national origin, marital status, ... disabilities or age"), to ones that are much narrower ("sexual orientation" -- meaning, of course, "other than heterosexual"), and concluding with a category that characterizes a tiny minority indeed ("gender identity and expression").

Paradoxically, however, there appears to be an inverse relationship between the number of persons who could be placed within a given category and the sub-categories within that category.  Thus "marital status" breaks down into categories of single, married, divorced or widowed. Likewise, "race" and "ethnic origin", while capable of many gradations, are still defined by less than a dozen boxes on the census forms. But as Facebook (the largest social media site on earth) now is recognizing, there are no less than 58 sub-categories of "gender identity and expression."

Episcopalians point to this progression of smaller and smaller categories as one of increasing inclusivity. "There will be no outcasts in this Church," said Presiding Bishop Browning in 1986.

At the same time, the Episcopal Church has, since around 2000, been alienating hundreds of thousands of churchgoers, and deposing nearly a thousand of its clergy. What single characteristic do you think best identifies with those who have left or have been forced to leave?

If you responded "orthodoxy in tradition and belief," you would be correct.

And that fact speaks volumes about the Church's "inclusivity."

When the disenfranchised minorities pressed over the last ten years for their listing in the anti-discrimination Canons, where were the voices speaking up for the orthodox? It's a good question.

One could certainly put forth a modest proposal to rectify this increasing discrimination against the orthodox by those in ECUSA. It would propose to amend Canon I.17.5 (and its clergy counterpart) to read as follows:
No one shall be denied rights, status or access to an equal place in the life, worship, and governance of this Church because of race, color, ethnic origin, national origin, orthodoxy of belief or practice, marital status, sex, sexual orientation, gender identity and expression, disabilities or age, except as otherwise specified by Canons.
I can see people at once objecting: "How do we define 'orthodoxy of belief' or 'orthodoxy of practice'?" To which the obvious answer is: "Difficulty of definition was not an objection to adding the words 'gender identity and expression' in 2012, so why should we get hung up on definitions? Judging from the number of clergy being deposed, the Church leadership has no difficulty whatsoever in discerning just who is 'orthodox'."

Consider: we already have attacks on bishops and other clergy who do not march with the LGBTs, or who do not speak out enough against anti-gay laws, or who will not back same-sex marriages and blessings. (Does the word "homophobe" sound familiar?)

The addition of these words to the Canon would at least furnish a basis for trying to limit or end such attacks. They would also create a "safe harbor" for those who read their Scripture as it had been read for at least two thousand years before General Convention 2003.

And do you know what? That is exactly why such an amendment would never be adopted at General Convention.

For those now in charge of the Church want to keep up the pressure on the orthodox to go elsewhere. They are all for inclusion, but not of the traditional or orthodox. Those who once held power must apparently pay for the years of oppression they (albeit unintentionally) inflicted on minorities -- simply by being who they are, and upholding their traditional understandings of Holy Scripture.

It is Father Neuhaus' Law in spades: "Where orthodoxy is optional, orthodoxy will sooner or later be proscribed." The tendency to limit orthodoxy by making it optional, and then to proscribe it altogether, cannot be stopped so long as the new liberalism of self-identity holds sway.

And why is that? In the essay just linked, Fr. Neuhaus gives a very perceptive explanation:
Orthodoxy, no matter how politely expressed, suggests that there is a right and a wrong, a true and a false, about things. When orthodoxy is optional, it is admitted under a rule of liberal tolerance that cannot help but be intolerant of talk about right and wrong, true and false. It is therefore a conditional admission, depending upon orthodoxy’s good behavior. The orthodox may be permitted to believe this or that and to do this or that as a matter of sufferance, allowing them to indulge their inclination, preference, or personal taste. But it is an intolerable violation of the etiquette by which one is tolerated if one has the effrontery to propose that this or that is normative for others.
I think Fr. Neuhaus has it exactly right. To adhere to tradition is to adhere to standards of right and wrong. People could disagree over particulars, and it was possible to have debates about the finer points. But no longer:
With the older orthodoxy it is possible to disagree, as in having an argument. Evidence, reason, and logic count, in principle at least. Not so with the new orthodoxy. Here disagreement is an intolerable personal affront. It is construed as a denial of others, of their experience of who they are. It is a blasphemous assault on that most high god, “My Identity.” Truth-as-identity is not appealable beyond the assertion of identity. In this game, identity is trumps. An appeal to what St. Paul or Aquinas or Catherine of Sienna or a church council said cannot withstand the undeniable retort, “Yes, but they are not me!” People pack their truths into what Peter Berger has called group identity kits. The chief item in the kit, of course, is the claim to being oppressed.
Oppression means that there are victims and oppressors, and the latter must pay for their sins against the victims. But first, they must forced to acknowledge the error of their orthodox ways. Are they against "being inclusive" or "being accepting"? Who would dare so be? So hit them with guilt -- after all, they are rich, white Episcopalians:
The proponents of truth-as-identity catch the dissidents coming and going. They say their demand is only for “acceptance,” leaving no doubt that acceptance means assent to what they know (as nobody else can know!), [and] is essential to being true to their authentic selves. Not to assent is not to disagree; it is to deny their humanity, which, especially in churches credally committed to being nice, is not a nice thing to do.
The culture of identity, however, is one of increasing fragmentation. For very few others can have shared all the experiences you have gone through to make you what you are -- i.e., there is no longer any common ground of experience. And the lack of common ground is the ultimate barrier to consensus and agreement on going forward. Appeals to past tradition and Scripture fall on deaf ears:
This helps explain why questions such as quota-ized representation, women’s ordination, and homosexuality are so intractable. There is no common ground outside the experiential circles of identity by which truth is circularly defined. Conservatives huff and puff about the authority of Scripture and tradition, while moderates appeal to the way differences used to be accommodated in the early church (before ca. 1968), but all to no avail. Whatever the issue, the new orthodoxy will not give an inch, demanding acceptance and inclusiveness, which means rejection and exclusion of whatever or whomever questions their identity, meaning their right to believe, speak, and act as they will, for what they will do is what they must do if they are to be who they most truly are. “So you want me to agree with you in denying who I am?” By such reasoning, so to speak, the spineless are easily intimidated.
Those who are not intimidated simply grow weary of the endless attacks on their orthodoxy, and the  stridency of those behind the attacks. But both kinds end up leaving -- not just in the hope of finding peace and quiet, but also because being constantly on the defensive is both spiritually debilitating and physically stressful. Religion is not supposed to consist of confrontation, of having continually to justify your faith while being called a "bigot", a "homophobe", and worse.

For traditional conservatives, religion used to be a communal affair. You were baptized in the church, married in the church, and given a funeral in the church -- in the midst of your community. (Indeed, that is the only reason, for example, we know when William Shakespeare was born, when he married, and when he died: the dates are all due to carefully preserved parish records.) The church was, for better or worse, the thread that linked all of your significant life events.

But the point was not that you made the church; instead, you came to the church in all humility, as an infant, and the church thereafter sheltered and supported you as you passed and marked each of life's milestones. It had its own authority, derived from the community that comprised it and the God they  worshipped, while you derived from it the nourishment that came from being part of that community which worshipped God. Nevertheless, it is due to man's fallen nature,which makes him think that he does not need God to help him, that man eternally tries to remake the church in his own image.

There is much more to commend in Fr. Neuhaus' essay of six years ago. Not least is his longer view, in which he contrasts the forces behind today's identity-liberalism with the forces that gave rise to the Anglo-Catholic movement in the 19th century. Both took on their respective cultures. While the latter was transformed in the process, we are unfortunately not yet able to see just what kind of transformation the current ideology will undergo.

Nevertheless, the two movements differ greatly in their essential goals. Anglo-Catholics sought to travel the via media of Anglicanism on a path toward the ultimate reconciliation of Orthodoxy and Catholicism. The modern crop of identity-liberals have no common goal other than to celebrate their own individuality, and to make others respect (and even honor) it. It is difficult to see, at this juncture, just how a church can stay together when the center no longer holds.



Monday, April 24, 2017

Turnings -- a Series (I)

Spring has been slow to come to the Sierras this year. Interspersed with periods of cold and freezing, we have experienced the heaviest rainfall thus far in our recorded history. It is raining even more as I write. The official season will not end until September 30, so the new record being set will keep pushing higher until then.

The copious precipitation is keeping, and will keep, our meadows and fields greener longer than ever this year. Normally they start to turn brown in early to mid-May (which is the usual start of California's "dry" season). The wildflowers are running riot, and the birds and the bees have plenty to do before the weather warms up.

With spring this year came Easter, of course. And with Easter came some significant changes in your Curmudgeon's household.

I still link to this post on the masthead of this blog, because it describes a significant milestone for me: it marks the date I decided I could no longer be a member of ECUSA, due to the blasphemous marriage rites adopted by the House of Bishops in General Convention. Although I had been a member ever since my earliest years (I was baptized into our local parish as an infant, and started singing in the choir at the age of four), June 30, 2015 marks the date when I became a wanderer in search of a denomination. ECUSA itself was irretrievably corrupted, and the choices available within even an hour's driving time were severely limited.

I still cherish nothing but warm feelings for the parish that raised me, and as they remain fully orthodox, I have trespassed upon their generosity by continuing to attend Sunday communion there. But the dichotomy of being now a guest in what was once my home has caused the connection I felt since childhood to be lost. It used to be a coherent part of a larger body for me, but now appears (I speak only for myself) disembodied. Moreover, the parish is undergoing a transition to a new (and as yet unknown) rector, and what it will be like in another year's time is very much an open question (in which I have, for the first time, no role to play).

Meanwhile, my dear wife of forty-five years patiently suffered through this time of limbo with me, until finally she could drift untethered no longer. Following up on an interest that she had developed from our attending a conference of the American Chesterton Society, she began taking instruction last year as a candidate who would follow in the path of that great man (and his wife). At an Easter vigil ceremony on April 15 this year, she was formally received into our local Roman Catholic Church.

And so for the time being (just as the Chestertons were, because Frances was too Anglican to follow G.K. into Catholicism immediately), we are a denominationally divided household. Though we both may of course still attend services and sit and pray together, I cannot take communion any longer with my wife, as she can no longer take communion with me. (If there were an Anglican Ordinariate parish within driving distance, our joint decision might be far less difficult.)

This temporary state of affairs has spurred me to look into just why it must be so. Of course I know the historical reasons, but I know just as certainly that there will not be any denominations after the Second Coming. So if we as Christians will not look to them in the future, why exactly do we have need of them and their arbitrary boundaries now? Salvation is a matter of faith through God's grace -- even the Lutherans and the Roman Catholics have reached agreement on that much. The other things that divide us are things that the Second Coming will render irrelevant, such as the primacy of the Bishop of Rome, or the catechism, or the prayer book.

Blogging has fallen away precisely because of my preoccupation with these (for me) vital questions. With the five hundredth anniversary of the Lutheran Reformation this year, I have been spending my available time going back through the history of those momentous times, in an effort better to understand how we Christians all ended up where we are today.

Scholars appear to agree that Luther did not intend to start a new denomination, but his own temper and acerbity provoked his opponents to meeting his attacks with wounding parries of their own. Nevertheless, there was not just one Reformation between 1517 and 1648, but many, once Luther gained the princes' attention (with the help of the printing press), and once the momentum he built up then spread across national borders.

There was no one driving force behind these individual movements. Instead, it appears to be a case of many pressures having built up to the point that the customary boundaries of religion and society could not withstand the internal and external onslaughts from so many directions at once.

Likewise, as we today appear to be heading into the end times, there are many currents that threaten, just as they did in the 16th century, to overwhelm and engulf what traditional religious outposts remain to provide society's glue. The secular forces of today are allied as they have never been before by their common contempt for the principles of orthodox Christianity -- by which I mean the faith once handed down to us by the saints. For that matter, the defenders of those principles appear as few and far between.

It is too early in my explorations for me to say whether I will eventually be able to bid Anglicanism goodbye, since its spirit still runs strong in my veins -- no matter how much the weak-willed Welbys of the world appear bent on diluting it. But as I foreshadowed in many posts here long ago, the tocsin is now sounding the passing of the Church of England; its days as a single denomination are numbered. And once the mother salt loses its saltiness, of what use is it to the rest of us Anglicans?

Although I have long considered myself in the tradition of Anglo-Catholics, it is the patrimony of Cranmer, Hooker and Jewel -- and their identification with the Catholic traditions that came before -- that I cherish more than any label of the service that I attend. I respect those worthies' attempts to stay Catholic (i.e., retain the saltiness of their mother church) within the bounds that the English monarchy's own selfish desires set for them. And Sir Thomas More remains one of my great heroes precisely because he refused to yield up to the demands of his monarch his faithfulness to his church.

Luther, though, is a different story. For one thing, unlike the other heroes I have been mentioning, he was inseparable from his own ego, even while he no doubt believed in his heart he was unable to do (or stand) other than as he did. But his sheer inability to see other points of view made him into a one-note record: he either drowned you out, or drove you away, and he cared not which, just so long as you ceased offering opposition to his views. There was nothing to admire in his scorn for Erasmus, who tried so hard to keep Luther from burning all the bridges that originally tied him to Catholicism. After their final and very public rupture in 1526, the rest is history. And western Christianity has never recovered, but become only more and more splintered.

So as I continue with my readings and researches, I hope to put before you from time to time some preliminary results, as well as pointers toward future and further inquiries, along my path to a new discernment. I invite you, as always, to share your civil comments and insights as you are moved to do so by what appears here. And I thank you for your patience and indulgence as this old dog tries to find a place where he may lay his head. Please keep us in your prayers -- may God bless you all.








Saturday, April 1, 2017

Episcopal Church Forms Title Company, Acquires Law Firm

Unable to obtain title policies any more on any of the thousands of properties held at the national, diocesan or local parish level, the Episcopal Church (USA) announced plans today to use part of its endowment to establish its own company to provide title insurance for its members. At the same time, ECUSA announced it has acquired a national law firm in an effort to control its litigation expenses, which reportedly are out of control.

"The [title insurance] problem appears to be with our [so-called] Dennis Canon," said a Church spokesperson at the national headquarters in New York City. After a full review of the more than 90 cases in which the title to church property has been disputed in the last sixteen years, the national association of title insurance companies recommended last month that no further title policies be given to any parish, diocese or other entity affiliated with ECUSA, or to any person purchasing property from any Church unit.

"All we have been told," the spokesperson continued, "is that multiple uncertainties over the meaning, application and effect of the Dennis Canon, as demonstrated by the extremely variegated reception it has had in State courts across the country, make it impossible for title companies reasonably to assess the risks of insuring such properties. And without being able to assess the risks, they are unable to set any premiums for such coverage. So, if a property was ever at any time arguably under the strictures of the Dennis Canon, they just won't issue a policy for it any more."

Asked whether it was a problem that the Dennis Canon purports to create a nationwide trust in favor of ECUSA that is unrecorded in any State, the spokesperson admitted: "We understand that is a significant part of the problem, yes."

And why can't the Church simply proceed to record trust documents in every State, to get around that problem?

"Well, that's why we resorted to the Canon in the first place," the spokesperson responded. "We simply could never count on the over 7,000 individual parishes across the country agreeing to sign such documents. So we just created the trust on our own -- and it worked very well for the first twenty years, because no one ever noticed what we had done. But ever since that case in South Carolina -- the Wiccam case, or whatever its name was -- there have been nearly a hundred cases brought either to enforce or to nullify Dennis Canon trusts."

"And we've reached a decision, just like the title companies, that we can't continue in this fashion. So we're forming our own Title Insurance Company of The Episcopal Church for Terrae Omni Ecclesiae -- that Latin part means 'all Church properties'.  That abbreviates as TICTECTOE, which we think is rather a handy mnemonic for our clergy and vestries."

In a separate announcement today, ECUSA gave a nod to its burgeoning litigation activity on all fronts, which to date has included: (1) filing suit against its own Church Insurance Company; (2) being sued by its own former employees; and (3) bringing suit against the donor of one of its most valuable properties, to say nothing of (4) suing over 90 of its former parishes, dioceses, bishops, and clergy. The statement released from its 815 Second Avenue headquarters reads as follows:
The Episcopal Church (USA) is pleased to announce its acquisition of the national law firm of Dewey Sooem and Howe, in order to bring the handling of all civil and ecclesiastical litigation under one roof. "We see this as a natural continuation of our policy to serve Jesus by having all our legal matters handled in house," said Presiding Bishop Michael Curry.

In order to avoid violating legal professional norms, all partners in the famed firm have agreed to accept priestly orders in the Church; associates will be ordained as deacons. While the salaries they will be paid will not even approach what they had earned in their own firm, a partner said off the record that they were handsomely compensated by the buyout, and further that, as clergy, they could now look forward to the extremely generous benefits paid by the Church Pension Fund.

Presiding Bishop Michael Curry stated that the $160 million expense of the acquisition will be offset by future savings in fees paid to outside law firms in the various States, which Curry said had cost the Church and its 110 dioceses over $60 million to date. "We will make up the cost in just five to eight years," he said. "From that point forward, litigation for the Church will be an addition to our bottom line, instead of the constant subtraction it has been till now. Moreover, when not busy with litigation, the firm's members will be available for us as supply priests for all the new missions we are hoping to establish in the coming years. So from our point of view, it's all win-win."